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Agency's Chief Judicial Officer, the Region filed a response to MAC's petition for review.1

I. INTRODUCTION

Placers are alluvial or glacial deposits of loose gravel, sand, soil, clay, or mud. To extract gold from placers, placer miners first remove surface materials, such as vegetation, non-gold-bearing gravel, organic-rich frozen material, and ice ("overburden"). They then excavate the gold-bearing material and typically place it in a sluice where the ore is separated from the rest of the material.

In 1988, the Agency promulgated national effluent guidelines for the gold placer mining industry at 40 CFR Part 440, Subpart M. The guidelines require as the best available technology economically achievable (“BAT") recirculation of all process water used in the gold recovery process and the use of settling ponds. 40 CFR § 440.143 (1990). See also 53 Fed. Reg. 18772 (May 24, 1988) (preamble to guidelines for gold placer mining industry). After water has been used in the beneficiation process (separation of gold from other materials), the water is channeled into a settling pond to allow particulate matter to settle to the bottom. Recirculation of process water is achieved by withdrawing from the settling pond water that has already been used in the beneficiation process, using the water in the beneficiation process again, and returning the process water to the same settling pond afterwards. While the guidelines require recirculation of all process water, they also recognize that stormwater and groundwater will drain into the placer mine area, so that more water will be in the system than can be recirculated in the beneficiation process. This excess water will cause "incidental" discharges. Id. For such discharges, the guidelines impose an effluent limitation of 0.2 ml for settleable solids. Id. The guidelines also impose certain best management practices. 40 CFR 440.148 (1990).

In accordance with the guidelines, the permits under consideration here incorporate an effluent limitation of 0.2 ml/1 for settleable solids. They also contain effluent limitations of 0.05 mg/l for total arsenic, and site-specific limitations for turbidity, which limitations are required by state certification to ensure compliance with Alaska water quality standards for those two pollutants. 18 AAC 70.20.

1At that time, the Agency's Judicial Officers provided support to the Administrator in his review of permit appeals. Subsequently, effective on March 1, 1992, the position of Judicial Officer was abolished, and all cases pending before the Administrator, including this case, were transferred to the Environmental Appeals Board. See 57 Fed. Reg. 5321 (Feb. 13, 1992).

II. DISCUSSION

Under the rules governing this proceeding, there is no appeal as of right from the Regional Administrator's decision. Ordinarily a petition for review is not granted unless the Regional Administrator's decision is clearly erroneous or involves an exercise of discretion or policy that is important, and should therefore be reviewed by the Environmental Appeals Board. See IT Corporation (Ascension Parish Louisiana), NPDES Appeal No. 83-2 (July 21, 1983); Boston Edison Company, NPDES Appeal No. 78-7 (August 28, 1978); E.I. du Pont de Nemours & Company, NPDES Appeal No. 78-2 (March 16, 1978); 44 Fed. Reg. 32887 (Preamble to 40 CFR Part 124). The petitioner has the burden of demonstrating that review should be granted. See 40 CFR § 124.91(a) (1990).

MAC requested an evidentiary hearing on numerous conditions in the permits. Some of those evidentiary hearing requests were denied by the Regional Administrator. In its petition for review, MAC argues that the Regional Administrator should have granted an evidentiary hearing on the eleven issues discussed below.

Mixing Zones: As noted above, the national effluent guidelines for gold placer mining impose a technology-based effluent limitation for settleable solids. MAC argues that when the Region incorporated this effluent limitation into the permit, it failed to take into account mixing zones. MAC has apparently confused technology-based effluent limitations with water quality standards. Water quality standards apply after pollutants have been discharged into the water. A mixing zone comes into play only when compliance with a water quality standard is being determined. A mixing zone allows a person testing the effluent's effect on the receiving waters to collect samples downstream of the facility where some dilution of the effluent has occurred. By contrast, technology-based effluent limitations, like the one under consideration here, apply prior to or at the point of discharge, thus precluding a person testing for compliance with a technology-based limitation from factoring in dilution when measuring pollutant concentrations in the effluent. See 40 CFR § 125.3(e). Thus, technology-based effluent limitations have nothing to do with mixing

zones.

In the brief supporting MAC's Notice of Appeal, MAC refers to an agreement between it and the Region, in which the Region agreed to incorporate mixing zones provided by Alaska in amended certifications. That agreement has no application to this issue since State certifications relate only to water quality standards and not

to technology-based effluent limitations. In light of these considerations, we conclude that the Region was not required to consider a mixing zone when it incorporated the technology-based effluent limitation for settleable solids into the permit. Accordingly, review of this issue is denied.

Turbidity: An Alaska water quality standard restricts the allowable level of turbidity in receiving waters attributable to placer mining. 18 AAC 70.20. To meet this water quality standard, the permit contains an effluent limitation which directly limits the turbidity of the effluent as it leaves the mine-site and enters the receiving waters. MAC argues that an effluent limitation that directly limits turbidity is unnecessary because the limitation on settleable solids will control turbidity sufficiently to meet the water quality standard. This argument was raised and rejected recently in In re 539 Alaska Placer Miners, more or less, and 415 Alaska Placer Miners, more or less, NPDES Appeal No. 90-10, 90–11, at 13-14 (CJO, December 19, 1991), and MAC has presented no reason for departing from that precedent. Accordingly, review of this issue is denied.

Monitoring for Arsenic: Part I(A)(2)(d) of the permit, governing arsenic monitoring, requires that "[m]onitoring shall be conducted in accordance with accepted analytical procedures (Standard Methods, 16th Edition, 1985)." Such procedures have been approved under 40 CFR Part 136. Part II.C. of the permit, however, authorizes the use of monitoring procedures that have not been approved under Part 136. Pursuant to Part II.C., the Region has attached to the permit a sampling protocol governing the collection of arsenic samples, which has not been approved under Part 136. (AR 000446.) Apparently assuming that Part I(A)(2)(d) applies to the entire monitoring process, MAC argues that the two conditions are inconsistent. We disagree. The two permit sections are not in conflict because Part I(A)(2)(d) only prescribes how arsenic samples should be analyzed and where arsenic samples should be taken, while the sampling protocol only prescribes how arsenic samples should be taken and how they should be prepared for laboratory analysis. We note that the rules give the Region discretion to deviate from procedures approved under Part 136.2 The Region has exercised that discretion

240 CFR § 122.41(j)(4) provides as follows:

Monitoring results must be conducted according to test procedures
approved under 40 CFR part 136 or, in the case of sludge use
or disposal, approved under 40 CFR part 136 unless otherwise
specified in 40 CFR part 503, unless other test procedures have
been specified in the permit.

here by specifying procedures not approved under Part 136 with respect to one part of the monitoring process, while adhering to procedures approved under Part 136 with respect to the other part of the monitoring process. Petitioners have not offered any reason why the Region's exercise of discretion in this case should be reviewed. Accordingly, review of this issue is denied.

In its Notice of Appeal, MAC also states that, with respect to the arsenic limitation in the permits, "the question of whether or not a background measurement is needed and whether or not a mixing zone is authorized must be addressed." In its brief supporting the Notice of Appeal, however, MAC did not include any discussion whatsoever on these issues. Accordingly, we conclude that MAC has not met its burden of identifying a clear factual or legal error or a policy consideration or exercise of discretion that warrants review. Review of these issues is therefore denied.

Takings Clause: MAC argues that a permit requiring total recycle is a taking of a valuable property right for which the permittee must be compensated under the Fifth Amendment of the U.S. Constitution. A similar challenge was made in the case of Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990). In its decision, the U.S. Court of Appeals for the Ninth Circuit rejected the claim for two reasons. First, the court concluded that no takings claim was ripe because the Rybacheks had not claimed that a particular piece of their property had been taken as a result of the promulgation of national effluent guidelines for gold placer mining. Id. at 1300. Second, the court concluded that a U.S. Court of Appeals was not the appropriate forum for such a takings claim since Congress has specified that takings claims be brought in the United States Claims Court or in certain cases the United States District Courts. Id. at 1300-01.

The Ninth Circuit's reasoning in Rybachek as it applies to the appropriate forum for takings claims would similarly apply to MAC's takings claim in this case. Any individual takings claim must be brought in the U.S. Court of Claims or the United States District Court. Section 124.91, governing NPDES permit appeals, does not authorize the Environmental Appeals Board to entertain individual takings claims. Accordingly, review of this issue is denied.

Stay of State Certification: The permit requires that reasonable measures be taken to intercept and divert groundwater around the plant-site. The language was required by State certification. Both parties agree that the Commissioner of the Alaska Department of

Environmental Conservation later stayed this requirement. MAC argues that, because the requirement has been stayed, it should be removed from the placer mining permits. The Region responds that, under 40 CFR § 124.55(b), the Region may not remove the condition until the Region receives either a modified certification or a notice. of waiver from the State. The Region represents that it has received neither of these. 40 CFR § 124.55(b) provides as follows:

If there is a change in the State law or regulation
upon which a certification is based, or if a court
of competent jurisdiction or appropriate State board
or agency stays, vacates, or remands a certification,
a State which has issued a certification under
§ 124.53 may issue a modified certification or notice
of waiver and forward it to EPA. If the modified
certification is received before final agency action on
the permit, the permit shall be consistent with the
more stringent conditions which are based upon
State law identified in such certification. If the cer-
tification or notice of waiver is received after final
agency action on the permit, the Regional Adminis-
trator may modify the permit on request of the per-
mittee only to the extent necessary to delete any
conditions based on a condition in a certification in-
validated by a court of competent jurisdiction or by
an appropriate State board or agency.

Whether the Region must receive a modified certification or notice of waiver from the State before it may remove a state-certified condition from the permit is a legal issue that does not involve a genuine issue of material fact. Accordingly, it is not suitable for an evidentiary hearing. Nevertheless, we must still determine whether, as a legal or policy matter, the issue should be reviewed. The language of

340 CFR § 124.74(b)(1), 57 Fed. Reg. 5336 (Feb. 13, 1992), provides that the Environmental Appeals Board may review a purely legal issue, even though a Regional Administrator has correctly denied an evidentiary hearing on the issue:

This paragraph allows the submission of requests for evidentiary
hearings even though both legal and factual issues may be raised,
or only legal issues may be raised. In the latter case, because
no factual issues were raised, the Regional Administrator would
be required to deny the request. However, on review of the denial
the Environmental Appeals Board is authorized by § 124.91(a)(1)
to review policy or legal conclusions of the Regional Administrator.
EPA is requiring an appeal to the Administrator even of purely
legal issues involved in a permit decision to ensure that the Envi-
Continued

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